IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CHAD KISTER,

Plaintiff,

vs. Civil Action 2:12-CV-572

Judge Marbley

Magistrate Judge King

PAT KELLY, ATHENS COUNTY

SHERIFF, et al.,

Defendants.

OPINION AND ORDER

On July 25, 2012, the Magistrate Judge issued a Report and

Recommendation, Doc. No. 2, recommending that all claims except the

claims against Tri-County Mental Health and Counseling (“Tri-County”)

and Margaret Sterling and against Dr. Reddy Vaka and Jane Krason of

the Athens Behavioral Healthcare (“ABH”) be dismissed for failure to

state a claim for relief. This matter is before the Court on

plaintiff’s objections, Response to Recommendation to Dismiss Claims

Against Police (“Plaintiff’s Objections”), Doc. No. 17, and defendants

Tri-County and Margaret Sterling’s objections to that recommendation. 

Objections to Magistrate’s Order and Report and Recommendation of

Defendants Tri-County Mental Health and Counseling and Margaret

Sterling (“Defendants’ Objections”), Doc. No. 8.1 For the reasons that

follow, Plaintiff’s Objections are GRANTED in part and DENIED in part. 

Defendants’ Objections are GRANTED in part and DENIED in part. 

1

Certain defendants have filed a response to plaintiff’s objections. 

Doc. No. 20.

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I. Allegations in the Complaint

The allegations in the Complaint are not entirely clear. 

Plaintiff appears to allege that certain individuals broke into his

residence and intercepted his telephone calls. Complaint, Doc. No. 4,

¶¶ 14, 16, 27. Plaintiff demanded that defendant Athens County

Sheriff, several of his deputies and an Upper Arlington Police

Lieutenant arrest these individuals, but his requests were refused. 

Id. at ¶¶ 15, 17, 60-64.

Plaintiff alleges that a SWAT team (also identified as the

“Athens County Sheriffs”) stormed his property on July 29, 2011 with

their guns drawn and arrested him. Id. at ¶¶ 31-32, 36, 43, 45, 63. 

According to plaintiff, he was arrested in retaliation for exercising

his First Amendment rights and because of his prior successful

lawsuits against police agencies. Id. at ¶¶ 56, 62-63. The charges

against plaintiff were dismissed in June 2012. Id. at ¶ 63.

Plaintiff also seems to allege that, after he was arrested in

July 2011, he was evaluated by Dr. Reddy Vaka, “pink-slip[ped]” by

Margaret Sterlin, and involuntarily committed to ABH for 13 days,

where he was subjected to violations of his First, Fourth, Eighth, and

Fourteenth Amendment rights. Id. at ¶¶ 31-34, 37, 41-43, 48. 

Plaintiff alleges, inter alia, that while at ABH, he was blackmailed

into taking medication, was refused medical treatment for an inguinal

hernia, was prevented from using the internet or email, was hit in the

head, was unable to live in a way that kept his greenhouse gas

emissions low, was unable to practice his religion, which requires

daily walks through the forest, and was subjected to invasions of his

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privacy. Id. at ¶¶ 38, 39, 41, 42, 48-54. Plaintiff maintains that

these actions were taken by defendants in retaliation for his

successful prio lawsuits against police agencies and flowed from his

wrongful arrest. Id. at ¶¶ 31-32, 34, 37, 54. 

II. Plaintiff’s Objections

Plaintiff asserts several assignments of error. Each will be

discussed in turn. 

Plaintiff’s first assignment of error contends that the

Magistrate Judge erred in recommending the dismissal of plaintiff’s

false arrest and malicious prosecution claims. Plaintiff’s

Objections, pp. 2-4. The Report and Recommendation does not

specifically address plaintiff’s false arrest or malicious prosecution

claims. Although the precise nature of plaintiff’s claims in this

regard are not clear, the Court concludes that at this juncture the

action may proceed on those claims.2 

Plaintiff’s second assignment of error contends that the

Magistrate Judge erred in recommending the dismissal of plaintiff’s §

1983 civil conspiracy claim. Plaintiff’s Objections, pp. 4-5. A

2

 Although plaintiff seems to allege false arrest and malicious

prosecution claims simultaneously, the two are “entirely distinct” from one

another. Sykes v. Anderson, 625 F.3d 294, 308 (6th Cir. 2010). To establish

a constitutional claim of false arrest under the Fourth Amendment, a plaintiff

must show that no probable cause existed for the arrest. See Voyticky v.

Vill. of Timberlake, 412 F.3d 669, 677 (6th Cir. 2005). To succeed on a

malicious prosecution claim under § 1983 when the claim is premised on a

violation of the Fourth Amendment, a plaintiff must prove that (1) a criminal

prosecution was initiated against the plaintiff and that the defendant made,

influenced, or participated in the decision to prosecute; (2) there was a lack

of probable cause for the criminal prosecution; (3) as a consequence of a

legal proceeding, the plaintiff suffered a deprivation of liberty as

understood in Fourth Amendment jurisprudence, apart from the initial seizure,

and (4) the criminal proceeding was resolved in the plaintiff's favor. See

Sykes, 625 F.3d at 308–09. 

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civil conspiracy claim requires allegations that there was a single

plan to deprive someone of his constitutional rights, that each

conspirator agreed to the plan, and that at least one overt act was

carried out to further the object of the conspiracy. See Spadafore v.

Gardner, 330 F.3d 849, 854 (6th Cir. 2003). “‘It is well-settled that

conspiracy claims must be pled with some degree of specificity and

that vague and conclusory allegations unsupported by material facts

will not be sufficient to state such a claim under § 1983.’” Id.

(quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987)). 

The Complaint, even when viewed in the light most favorable to

plaintiff, does not satisfy this pleading standard. Plaintiff has

simply failed to plead the existence of a single plan among defendants

(or any combination thereof) to deprive plaintiff of his

constitutional rights. Plaintiff has therefore failed to state a

colorable § 1983 civil conspiracy claim. 

Plaintiff’s third assignment of error seems to contend that the

Magistrate Judge erred in recommending the dismissal of plaintiff’s

claims against Pat Kelly, the Athens County Sheriff, defendants Bruce

Fick, Jack E. Taylor, Brian Cooper and Rodney Smith, deputies of the

Athens County Sheriff’s Office, and Ernie Ankrom, a Lieutenant of the

Upper Arlington Police Department, for failure to prosecute other

individuals. Plaintiff’s Objections, pp. 5-7. It is well settled

that a private citizen “lacks a judicially cognizable interest in the

prosecution or nonprosecution of another.” Diamond v. Charles, 476

U.S. 54, 63 (1986) (citing Linda R.S. v. Richard D., 410 U.S. 614, 619

(1973)). Accordingly, plaintiff’s claims based on a failure to

prosecute cannot proceed. Moreover, because it appears that plaintiff

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names defendants Ernie Ankrom, Athens County, Ohio, and the Upper

Arlington Police Department only in connection with his demand that

other individuals be arrested or prosecuted, all claims against these

defendants are foreclosed

III. Defendants’ Objections

Defendants Tri-County and Margaret Sterling object to the Report

and Recommendation, arguing that the claims asserted against them

should be dismissed. Defendants first argue that they are immune from

liability under O.R.C. § 5122.34. Defendants’ Objections, pp. 1-2. 

Ohio Revised Code § 5122.34 provides in relevant part: 

(A) Persons, including, . . . mental health services and

community mental health agencies, acting in good faith, either

upon actual knowledge or information thought by them to be

reliable, who procedurally or physically assist in the

hospitalization or discharge, determination of appropriate

placement, or in judicial proceedings of a person under this

chapter, do not come within any criminal provisions, and are

free from any liability to the person hospitalized or to any

other person.

O.R.C. § 5122.34(A). Application of immunity under the statute

requires proof that Ohio’s statutory procedures governing involuntary

admission of persons, O.R.C. § 5122.05, and for the administration of

antipsychotic medication, O.R.C. § 5122.271, were followed. See

Ellison v. Univ. Hosp. Mobile Crisis Team, 108 F. App’x 224, 227 (6th

Cir. 2004) (citing Estates of Morgan v. Fairfield Family Counseling

Ctr., 673 N.E. 2d 1311, 1327 (Ohio 1997), superseded on other grounds

by O.R.C. § 5122.34(B)); Zukowski v. Germain, No. 2:09-cv-662, 2010

U.S. Dist. LEXIS 122174, at *20-21 (S.D. Ohio Nov. 18, 2010). It is

not evident from the face of the Complaint, and defendants do not

argue, that Ohio’s statutory schemes were followed. Even if § 5122.34

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were applicable to claims under § 1983, defendants have not

established that they are entitled to immunity under § 5122.34(A) at

this stage of the proceedings.

These defendants also argue that plaintiff’s claims against them

are barred by Heck v. Humphrey, 512 U.S. 477 (1994), because these

claims “solely challenge the validity of [plaintiff’s] confinement

without first having it set aside.” Id. at 2-4. Defendants ask that

the Court take judicial notice of Kister v. Henry, 2:12-cv-119, 2012

WL 604279 (S.D. Ohio Feb. 24, 2012), in which plaintiff’s claims,

which defendants allege are “nearly identical” to those in the present

case, were dismissed. Id. 

Plaintiff’s claims against defendants Tri-County and Sterling do

not “solely” challenge the validity of his confinement. See

Complaint, ¶¶ 39, 41, 42, 48-54. Plaintiff’s claims challenging the

conditions of his confinement may proceed. To the extent that they

challenge the validity of his confinement, however, plaintiff’s claims

cannot proceed in this action. 

Under Heck and its progeny, a state prisoner cannot state a

cognizable claim under § 1983 “if a ruling on his claim would

necessarily imply the invalidity of his conviction and confinement

until such time that the conviction is reversed on direct appeal,

expunged by executive order, declared invalid by a state tribunal, or

called into question by a federal court's issuance of a writ of habeas

corpus.” Lanier v. Bryant, 332 F.3d 999, 1005–06 (6th Cir. 2003)

(citing Heck, 512 U.S. at 486–87). The rule in Heck is not limited to

claims challenging the validity of criminal convictions. See Huftile

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v. Miccio–Fonseca, 410 F.3d 1136, 1137 (9th Cir. 2005) (applying Heck

to a § 1983 claim challenging civil commitment under California's

Sexually Violent Predators Act); Von Flowers v. Wis. Dep't of Health &

Family Servs., 58 F. App’x 649, 651 (7th Cir. 2003) (“[Plaintiff]

cannot sue for damages under § 1983 for his allegedly unconstitutional

confinement, or for other harm caused by actions whose unlawfulness

would render his commitment invalid, until that commitment has been

declared invalid through the proper channels.”) (citing Heck, 512 U.S.

at 486–87). Plaintiff seeks monetary damages arising out of his civil

commitment and the Complaint does not allege that his commitment has

been set aside. Complaint, p. 14. To this extent, then, the

Complaint fails to state a claim under Heck. 

Pursuant to 28 U.S.C. § 636(b)(1), this Court has conducted a de

novo review of the Report and Recommendation and the objections

thereto. For the foregoing reasons and for reasons detailed in the

Magistrate Judge's Report and Recommendation, Plaintiff’s Objections,

Doc. No. 17, are GRANTED in part and DENIED in part. Defendants’

Objections, Doc. No. 8, are GRANTED in part and DENIED in part. The

Report and Recommendation, Doc. No. 2, is MODIFIED as follows:

Plaintiff may proceed on his false arrest and malicious

prosecution claims. 

Plaintiff’s claims for monetary damages in connection with the

validity of his confinement are DISMISSED. 

All claims against Ernie Ankrom, Athens County, Ohio, and the

Upper Arlington Police Department are DISMISSED.

 In all other respects, the Report and Recommendation, Doc. No.

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2, is ADOPTED and AFFIRMED.

 s/Algenon L. Marbley 

 Algenon L. Marbley

 United States District Judge

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